Wrapping up 2008

To date, I’ve covered 47 cases that mentioned the Charter in 2008. There’s another two that I’ve written a post on but VCAT won’t let me tell you about those. And there’s another four [EDIT: five, as it turns out; [RE-EDIT: no seven!]] left. But the clock is ticking and I won’t have time to do a post on each of them. So, instead, here’s a set of short-takes:

Morgan v Department of Human Services (General) [2008] VCAT 2420: This is an FOI case from VCAT, but not the major case foreshadowed in the VGSO seminar, which I think was the subject of hearings last week. Instead, Ms Morgan is a litigant-in-person who alleges that various agencies of DHS committed manner of wrongs against her and her son in relation to eviction from and provision of crisis accommodation. Her initial step was to launch a private prosecution, but the DPP took it over and then dropped it. She then made an FOI request to DHS, who refused to release 128 documents, claiming a variety of FOI exemptions. She disputes the exemptions, hence the VCAT hearing. The Charter appears to arise in two ways: (1) Morgan alleges that the initial wrongs by the DHS agencies included breaches of various Charter rights: equality, privacy, families/children, liberty. Senior Member Robert Davis held this Charter angle made no difference, given that Morgan was already alleging all manner of illegality. Fair enough, though the position might be different for some other rights, like the right to life, that incorporate a right to a state investigation – arguably, FOI is needed to make sure the state doesn’t duck that job. (2) Davis noted that, in interpreted the FOI Act’s exemptions, he had to ‘give regard to [Charter] s32 in particular and the Charter in general.’ But nothing came of this. No sign of any analysis of what rights the exemptions may be incompatible with. I guess that’ll be up to Bell when he delivers judgment in XYZ v Victoria Police.

Kilkenny v Frankston CC [2008] VCAT 256: This is a plain old residential planning dispute from the Melbourne suburb of Seaford. So, what’s the Charter angle?:

Ms Kilkenny and Mr Colgan expressed concern about the potential for overlooking onto their property from a south facing window to the stairwell. Their grounds assert that the window would cause overlooking causing unreasonable loss of privacy. They also asserted that the charter of human rights had been breached as the council had not given adequate regard to their privacy. However, these concerns were allayed when Mr Kirk agreed to the inclusion of a condition on the permit requiring the deletion of the window in question and for it to be replaced with a skylight. Ms Kilkenny and Mr Colgan agreed that with this change, they were no longer concerned about overlooking or that their rights under the charter were breached.

Well, that’s a relief. I bet Phil Lynch will add this one to his list of feelgood stories about how the Charter is making a real difference! I’m sad, of course, because I would have loved for this one to go to the High Court so they could solve the many fascinating issues Ms Kilkenny’s and Mr Colgan’s assertion raises about the potential ‘horizontal effect’ of the Charter!

A R M v Secretary to the Department of Justice [2008] VSCA 266: This is the companion case to the fizzer, RJE. Unlike RJE, ARM didn’t escape his ESO. That’s unsurprising, because he had quite the history of offending (though, weirdly, he only got a short sentence for his most recent offence, which was against a 19 year-old) and, indeed, he conceded that he was likely to re-offend without supervision. His complaint was that an eight-year order was excessive, because of expert evidence that he’d be fine after a three-year course of treatment. The Court of Appeal held, convincingly, that the trial judge’s order of a three-year review (and two-year reviews thereafter) would do. That’s fair enough. Indeed, there seems to be no difference in substance, so why was ARM even in the court of appeal? Anyway, he did have two smaller victories: (1) He managed to head off an astonishing argument by the government that the SSOMA only allowed appeals against orders, not the duration of them. What was that about ‘model litigants’ not relying on ‘technical defences’? (2) He also won a non-pyrrhic victory, by getting the Court of Appeal to suppress his identity. This involved overcoming another nasty technical defence, but was otherwise easy, as the Court of Appeal felt that non-suppression would be a punishment and that there was no public interest in knowing who ARM was anyway. And that’s where the Charter got a passing mention:

In other cases it may be necessary to consider the right to privacy and reputation conferred by s 13 of the Charter of Human Rights and Responsibilities and, along with it, the effect of s 32 of the Charter on the interpretation of s 42 of the Act.

Yeah, well, in other cases – and in this case, for that matter – it might have been appropriate to consider Charter s 15 too, don’t you reckon? Derryn Hinch would undoubtedly say that Charter s 17 is worth a look too. But, boy, it’s not looking good for his challenge, is it?

Tilley v The Queen [2008] HCA 58: And, in what appears to be the [EDIT: second- [RE-EDIT: fourth!]] last Charter case of the year, it’s the first one that isn’t in a Victorian court or tribunal, though I guess Kenneth Hayne is still a Victorian of sorts. Not that he went easy on his former court. He was livid that convicted heroin trafficker, Peter Tilley, had to wait almost two years before he got an appeal hearing in the Court of Appeal, and then an astonishing further year before the Court delivered a judgment. (One of Tilley’s co-conspirators (ahem) completed his life sentence during that interlude!) Tilley was now seeking special leave in the High Court because the Court of Appeal, despite spending so long in contemplation, apparently forgot to consider some of his appeal grounds. Before Hayne, he argued that he had only one year left of his five-year non-parole period and an appellate success after that would be pointless unless he got bail. That triggered one half of a High Court precedent on bail pending special leave, but alas Hayne held that Tilley failed the other half, which required that the special leave application had a good chance of succeeding. Anyway, in the midst of Hayne’s raking the Court of Appeal over the coals, he said this:

It is neither necessary nor appropriate to examine here what, if any, consequences now follow in Victoria in this respect from s 25 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and its provision that: “(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees – … (c) to be tried without unreasonable delay”.

Nice to know he’s heard of the Charter. But why wasn’t it necessary or appropriate to actually apply the thing? Two explanations: (1) Charter s. 49(2), the bane of all ‘unreasonable delay’ cases for now. Tilley, of course, was charged yonks ago, but there would seem to be an argument that his proceedings before Hayne were separate from his criminal proceedings. (This makes a mockery of Charter s. 49(2), of course, but it deserves that.) (2) The High Court wasn’t exercising appellate jurisdiction (which might involve reviewing whether or not the Court of Appeal should have applied the Charter during the appeal) but original jurisdiction (and, in particular, s73 of the Constitution, which is the source of the High Court’s bail power.) So, no Charter s. 32 (the constitution isn’t a Victorian statutory provision), no Charter s. 38 (the High Court isn’t a public authority) and no Charter s. 6(2)(b) (the High Court isn’t a Victorian court or tribunal), right? Well, maybe. But what about the Judiciary Act and, in particular, this provision?:

79(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

Now, I certainly know very little about federal jurisdiction – Gummow: ‘I just felt a disturbance in the force!’ – and it may well be that this provision doesn’t bind the High Court exercising original jurisdiction. But, on the off-chance that it does, then wouldn’t it be arguable that Charter s. 25(2)(c) is a law ‘relating to procedure’ and that one or other of the operative provisions – Charter s. 6(2)(b) perhaps – is picked up by s79 in applications like Tilley’s? (As I understand things, this pick-up can even apply to state laws expressed to apply only to Victorian courts.)  And might that mean that Hayne has to rethink that rather restrictive High Court precedent on bail, to the extent that it limits Tilley’s rights under Charter s. 25(2)(c)? Just some crazy speculation, but maybe someone else is smoking what I’m smoking. [EDIT: Hey, someone was, but the Federal Court and the High Court didn’t inhale; interpretation is probably the least likely operative provision to be picked up, I imagine.] Not Hayne though, but he did give Tilley a little help, expediting his (doomed) special leave application.

And that’s it for my short takes. Not that short really. Despite my next post, I might just add some additional short takes on the off-chance that more 2008 judgments emerge on Austlii, even next year. But, as for 2009 judgments, you’re on your own.

[EDIT: As promised, here’s a short take on a new 2008 case that has appeared on Austlii: [RE-EDIT: Actually, there are three newcomers now.]]

Drummond v Telstra Corporation Limited [2008] VCAT 2630 is an unfair dismissal case trying to qualify as an anti-discrimination case. Continue reading

The Charter vs VGSO

Well, the year hasn’t ended with a bang, but there’ve been heaps of Charter whimpers, even one in the High Court. But, before I get to all of those, there’s also been some negative press about the Victorian Government Solicitor’s Office, which raises (in my mind at least) some interesting Charter issues.

One story involves an intra-University dispute:

Last week, government solicitor John Cain jnr sent a letter to James Doughney, a member of the university’s governing council, demanding he publicly apologise for “false and defamatory allegations” in an attack on a plan by university leadersto cut jobs. The letter says the university’s chancellor, Supreme Court judge Frank Vincent, and vice-chancellor Elizabeth Harman, reserve their rights to take legal action if Dr Doughney does not withdraw and apologise for his comments.

In October, The Age revealed Dr Doughney had sent a six-page letter to state and federal MPs accusing Professor Harman of using a “pea-and-thimble trick” to create a cash crisis to justify slashing 270 jobs. With Victoria University and the tertiary union in an industrial dispute, Mr McGowan said the defamation threat was an attempt to intimidate Dr Doughney in his role as state president of the union. Dr Doughney, an economist and elected staff representative on the university council, has said it was extraordinary for the chancellor to use a government solicitor in a bid to “gag” an academic.

As they say, disputes within Universities are so bitter precisely because so little is at stake. This story really only got attention because it involves some non-University players: a sitting judge and the head of the VGSO. The NTEU thought that the government should butt out, but the Attorney-General snapped back that Victoria Uni is the government:

Mr Hulls’ spokeswoman, Meaghan Shaw, said Victoria University was a statutory entity. She said the institution had been a client of the Victorian Government Solicitor’s Office for some years.

But sometimes it’s not so fun to be the government, depending on whether you fall within the definition of public authority:

4(1) For the purposes of this Charter a public authority is-

(a) a public official within the meaning of the Public Administration Act 2004; or

(b) an entity established by a statutory provision that has functions of a public nature; or

(c) an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise);…

So, who’s a public authority here?:

  • Victoria Uni? This isn’t entirely clear. It’s definitely a ‘statutory entity’, so it’s a public authority if it ‘has functions of a public nature’. Is tertiary education a function of a public nature? I bet that question taxes University heads every day.
  • Frank Vincent? (whose free speech credentials shone through in the Underbelly judgment.) This is clearer, but there’re two murky catches. He’s definitely a ‘public authority’, because he’s a ‘public official‘ under the Public Administration Act 2004, which includes judges, magistrates and the like. (He’s probably also a holder of a statutory office too, through his Chancellorship.) But one question is whether he’s a ‘court’ (or is that strictly his day job?) and then whether his Chancellorship is a non-administrative function under the dreaded Charter s. 4(1)(j). The other is whether his little letter to Dr Doughney, threatening a private law action, is an ‘act of a private nature’? So very murky. 
  • VGSO? This is the clearest. I can’t be bothered tracking down what VGSO is, exactly, but it’s almost certainly a public entity and, hence, a public official, and hence a public authority (gawd.) (If not, then things depend on the status of VU, as VGSO in this case is acting on behalf of them, right?) 

Anyway, the NTEU and Dr Doughney will be thrilled to know that that means that there’s no way that VGSO would do anything that was incompatible with human rights, including Dougney’s freedom of expression:

…[F]ormer Melbourne University vice-chancellor David Pennington said it was “silly” and “nonsense” for Dr Doughney to suggest the conflict was about academic freedom of speech. “It is not an issue of academic study and expertise, he told The Age. Professor Pennington said Dr Doughney was in a conflicted position in his roles as the elected academic representative on the university’s governing council and his position as the union’s state president. “This is a matter of political and industrial positioning.” Dr Doughney had the right to participate in the decision-making process of the university’s council, Professor Pennington said, but his primary responsibility was to the “institution and the corporation”.

Well, that’s a relief. But Doughney shouldn’t have worried anyway. Victoria’s top lawyer, Pamela Tate, is a member of the Australian Academy of Law and (until two months back) was on the advisory committee to Melbourne Law School’s Centre for Comparative Constitutional Studies. No way would she have a bar of any infringements on academic freedom.

The other story is the long-running saga of Mark Morgan, the Castlemaine solicitor whose miseries started after he won a heady victory for the victims of some dodgy police conduct. The police, mostly still on the job, were too poor to pay, but Morgan initially got an order for Victoria to pick up the tab. Alas, that victory triggered demands from Morgan’s ‘no win no fee’ barristers that they get paid, which wasn’t looking like it’d happen anytime soon because Victoria was appealing. The barristers convinced Morgan, who was no longer acting in the case, that he should promise the court that he’d repay the fees to Victoria in the event that it won its appeal. Of course, Victoria did and Morgan is up for a lot of money, as neither the police officers (ever) nor  the barristers (initially) paid up. According to the Court of Appeal, the VGSO officer in charge named Hugh McArdle got pissed off at Morgan (in part because he mistakenly thought a failed contempt action by the barristers had Morgan’s backing) and threw the legal book at him, demanding payment despite further High Court proceedings and the absence of any time-condition on Morgan’s undertaking, and threatening and eventually bringing contempt actions.

Alas, McArdle’s contempt action was a bridge too far. This wasn’t clear at first, because County Court judge Pamela Jenkins found Morgan guilty and made nasty sentencing remarks that caused Morgan a world of trouble with the profession (which, of course, made it even more difficult for him to meet his debt to Victoria.) But, yesterday, in Morgan v State of Victoria [2008] VSCA 267, three appeal judges found that the contempt action was untenable in multiple ways, mostly connected to the failure of either the undertaking or later orders that replaced it to specify a time for Morgan to pay his debt. The Court gave Jenkins a big serve, for being overly happy to wave away service process rules,  for quoting a Bongiorno judgment out of context and for wrongly labelling Morgan’s wrongs extreme. Each of these errors probably piggybacks on errors by VGSO, which is the one who failed to comply with the rules and – just a guess, I dont know – just might have been the one who led Jenkins into error on Bongiorno’s wise words. The most newsworthy point is that the Court firmly disagreed with Jenkins sentencing remarks, instead noting that VGSO came to the party with very dirty hands:

Moreover, Victoria’s position was hardly that of the model litigant which it purports to be and should have been. Throughout, whatever be the explanation for it, Victoria’s position towards the appellant was very aggressive, repayment being sought prematurely and otherwise inappropriately, and contempt proceedings being threatened on several occasions and ultimately being brought when on proper analysis contempt could not be established.

Ooooh. See, it’s sometimes a good thing to be sued by the government!:

2. The obligation requires that the State of Victoria, its Departments and agencies:

(a) act fairly in handling claims and litigation brought by or against the State or an agency,

(c) avoid litigation, wherever possible,

(f) do not rely on technical defences unless the State’s or the agency’s interests would be prejudiced by the failure to comply with a particular requirement,

(g) do not take advantage of a claimant who lacks the resources to litigate a legitimate claim,…

But it’s not just the model litigant rules that VGSO is bound by. Continue reading

VCAT vs the Charter

Two interesting new Charter cases have emerged from that hotbed of Charter lip service, VCAT.  But I can only talk about one of them!

The public one is TGM Investments Pty Ltd v Rosenfield [2008] VCAT 2407, a retail tenancies dispute (although it’s not clear what the substantive issue is.) The procedural involves legal representation in VCAT. VCAT is a lawyer free haven, but there are exceptions:

62 (1) In any proceeding a party…  (b) may be represented by a professional advocate if- … (iii) another party to the proceeding who is permitted under this section to be represented by a professional advocate is so represented…

One party, TGM Investments, is described as being represented by ‘Mr D Anthony, Solicitor‘. So, the result is that the other party, Mr Rosenfield, is entitled to be represted by a ‘professional advocate’. The issue in this case is whether Rosenfield is entitled to be represented by his advocate of choice, a ‘Mr J Foster of Counsel’.

The problem is that Foster represented TGM three years ago in another retail tenancies matter. Moreover, it even involved the same ‘building’ (though not the same bit of the building.) The issue was raised between the parties during settlement negotations and TGM weren’t bothered, but it seems that that agreement has fallen apart. TGM has asked for Foster to be booted off Rosenfield’s case.

VCAT Senior Member Damien Cremean – who taught in a subject I coordinated here at Melbourne Law School last semester (hi Damien!) – granted TGM’s request. His main ground involved the risk (denied by Foster) that Foster might be privy to some sort of secrets gained from his service to TGM and that Foster may (for that or other reasons) be unable to meet the requirement of ‘purity of interest in the adversaries’ that Cremean suggested was required by VCAT’s statutory provisions demanding that its proceedings be conducted fairly. Personally, I have never been impressed by the view that lawyers somehow become affiliated to a party simply by representing them. It’s a view that simultaneously overvalues the service lawyers offer while denigrating their supposed professionalism. The confidential information issue is, by contrast, a real one, but it surely requires something a bit more solid than straight-out speculation.

What’s crucial is the other side of the coin: that Rosenfield is being denied a lawyer of his choice (while TGM has no such burder.) If this was a criminal matter, that’d be a breach of Charter s. 25(2)(d), but this is, instead, a civil matter. Nevertheless, surely fairness will typically involve legal represntation of choice; it definitely requires equality of arms, which seems to be a little shaky here. Cremean, however, cited the Charter in TGM’s favour:

I am concerned with the outward perception of the performance of the Tribunal’s duty under the Act particularly s97. The duty to act fairly could be seen to be compromised if I allowed a member of Counsel to appear against a client for which he previously acted not very long ago. The perception could be that he might have available to him or her information given in confidence and might, unwittingly, use it. This is especially so when the factual contexts in both cases are not dissimilar. It is important also to note the fair hearing right given by s24 of the Charter of Human Rights and Responsibilities Act 2006. I do not consider it proper in the circumstances to allow Mr Foster to appear.

A classic passing mention, in that it doesn’t pay much attention to such niceties as the relevant operational provisions and any compelling comparative law judgments. Interestingly, Cremean’s argument – which notably only seems to focus on the fair hearing rights of TGM – seems to be in breach of Charter s. 6(1), which says that only human beings have human rights and specifically denies them to corporations like TGM. I’m no fan of Charter s. 6(1), especially in this context, but its effect does seem to be that, at least under the Charter, it’s Rosenfield’s fair hearing right that should have been promoted (with TGM’s and VCAT’s interests demoted to a factor in a Charter s. 7(2) or Charter s. 38(2) analysis.) Oops.

Alas, there has been at least one more VCAT judgment on the Charter in recent times that goes way beyond a passing mention, raising a novel and interesting question about the requirements of Charter s. 33 , some familiar but interesting questions about the continued status of McMahon v Gould in light of the Charter, and does a reasonable, if not ultimately satisfying job, at grappling seriously with the operative provisions. Indeed, I’ve written a lengthy post of nearly 4000 words on the case and had it ready to go as soon as the judgment appeared publicly on Austlii. Alas, when I got a little tired of waiting for it to appear and inquired with VCAT about whether there was some sort of problem, I got a response late yesterday that – strangely, just yesterday! – President Bell issued an order suppressing the judgment – and any ‘disclosure or publication’ of it  –  until next month, except for the purposes of the parties who might wish to appeal. Was that my fault?

Doubtless, Bell has good reasons for his order. Arguably, he’d better have Continue reading

The right to the Simpsons

homerstranglesbart1Today’s headlines bring news of what we are told are some of the worst child pornography videos AFP officers have ever seen and the startling angle that ‘a retired Victorian QC’ is among those arrested.  We will, of course, never see those videos, nor is there any legitimate reason to think that anyone would want to, outside of the prosecution and defence of those offences.

But this week has also brought two other stories about materials alleged to consist of child abuse (here and here):

A NSW Supreme Court judge has ruled an internet cartoon in which lookalike child characters from The Simpsons engage in sexual acts is child pornography. In a landmark finding, Justice Michael Adams today upheld a decision convicting a man of possessing child pornography after the cartoons, depicting characters modelled on Bart, Lisa and Maggie engaging in sex acts, were found on his computer. The main issue of the case was whether a fictional cartoon character could “depict” a “person” under law. “If the persons were real, such depictions could never be permitted,”Justice Adams said in his judgement. “Their creation would constitute crimes at the very highest end of the criminal calendar.”

Queensland Police say it is a crime for anyone to even watch a viral video of a man swinging a baby around a room. Chris Illingworth, 60, a father of four from Maroochydore, was charged after he posted the video, which he stumbled across on YouTube, on an internet site. The video, which shows the man swinging the baby by the arms, was broadcast on US television and has been viewed by hundreds of thousands of people online. Illingworth’s home was raided after he posted the clip on Liveleak. He was charged with using the internet to access and publish child-abuse material. The charge has proven controversial because the baby – reportedly part of a Russian circus family – is shown laughing and smiling at the end of the clip… In a statement, Queensland Police said the term “child-abuse material” even extended to clips in which a child “appears” to be a victim of cruelty.

Having heard the descriptions of these videos, I have no interest in seeing them. But, that being said, I cannot, for even a second, regard people who do want to see them as wanting to harm anyone or otherwise deserving of anything other than wowserish condemnation. Moreover, and here’s a tricky catch, there’s clearly no way for anyone who doesn’t trust the above descriptions to check if they are correct or not, or to otherwise test whether my judgment on harm is correct: just looking at either of them, and in particular, possessing them on your computer, is a major crime that could land you in enormous and life-long trouble.

The culprit is the definitions that appear in the Commonwealth Criminal Code:

“child abuse material” means: (a) material that depicts a person, or a representation of a person, who: (i) is, or appears to be, under 18 years of age; and (ii) is, or appears to be, a victim of torture, cruelty or physical abuse; and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or (b) material that describes a person who: (i) is, or is implied to be, under 18 years of age; and (ii) is, or is implied to be, a victim of torture, cruelty or physical abuse; and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.

“child pornography material” means: (a) material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who: (i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); …  ; or (c) material that describes a person who is, or is implied to be, under 18 years of age and who: (i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons);… does this in a way that reasonable persons would regard as being, in all the circumstances, offensive…

Sections 474.19, 20, 22 & 23 create offences of downloading, uploading and possessing such internet-sourced material, punishable by ten years imprisonment and (presumably) attracted a host of secondary sanctions, not to mention headlines for the famous. 

I’ve previously covered a number of issues when it comes to such material. One narrow one is that children – a definition that extends to 17 year-olds – may produce this material and possess it themselves.  Another, the subject of major decisions overseas, is that ban on apparent, rather than actual, child porn or child abuse material, ranging from sophisticated computer generated images to simple doodling. As such material does not piggyback on actual abuse of children, any ‘reasonable limits’ justification for banning it must rest on the consequences of mere possession and viewing. The United States and Canadian Supreme Courts, by different routes, have held that it is contrary to the right to free speech to ban mere posession of fake porn, as opposed to trying to pass it off to others. A third, raised prominently by the Henson case, is that some material within these definitions may nevertheless have artistic (or some other) merit.

This week’s cases raise the latter two issues. In the case of Simpsons video (definitely) and the Liveleak video (arguably), no child is being harmed. Rather, the police’s case comes down to the ‘appearance’ of harm, something that is clearly caught by the above definitions. Given that, the sole apparent defence for possessing such material (or attempting to possess it) is whether or not ‘reasonable persons’ would regard the videos as being ‘offensive’.  Here’s the Criminal Code‘s take on offensiveness:

473.4 The matters to be taken into account in deciding for the purposes of this Part whether reasonable persons would regard particular material, or a particular use of a carriage service, as being, in all the circumstances, offensive, include: (a) the standards of morality, decency and propriety generally accepted by reasonable adults; and (b) the literary, artistic or educational merit (if any) of the material; and (c) the general character of the material (including whether it is of a medical, legal or scientific character).

Now, I have absolutely no idea whether or not either video meets this standard. The Simpsons video sounds like it won’t, of course, but that depends on how accurately it has been described. It it all just cartoon sexual abuse? Or is there some sort of ‘context’ – the trademark humour of the ‘real’ Simpsons – that might attenuate or even remove any offensiveness? As for the Liveleak video, what is described sounds much like just about ever ‘Funniest Home Video’ I’ve ever seen (and, you may recall, that programme had very high ratings.) But, of course, no-one surely would dare to check. Quite the chilling effect. (The issue of whether quite different material, statements to police during a criminal investigation, are child abuse material, and in particular, offensive, has recently been before the courts: see here, here and – a cliffhanger! –  here.)

But, as you can see, I have taken a dare, albeit one that is taken by Channel Ten most nights. Continue reading

Taxi driver redux

Sophie Delaney and Vivienne Topp write in today’s Sunday Age on XFJ (the first mention of the case that I’m aware of in the broadsheet):

Not only is this a disturbing example of tabloid-driven law-making, and an undermining of the rule of law, it is also potentially discriminatory. People found not guilty due to mental illness offend because of their illness. An indiscriminate exclusion of such people from employment or participation in society is particularly questionable in the year when Victoria’s Charter of Human Rights and Responsibilities has become fully operational.

It is starting to look like the Charter will inevitably be drawn into this case, despite its near miss in the VCAT judgment.

There are currently three Charter angles:

First, there’s news of an action to overturn the suppression order on XFJ’s name by VCAT:

Ms Kosky’s comments came as the Herald Sun launched legal action to unmask the man, who stabbed his wife to death in a frenzy and whose identity is suppressed by a tribunal order.

It was pointed out to me that, if the Herald Sun was able to use the Charter to reveal XFJ’s identity, then my feared head-on crash may be more of a love-in. Indeed. But it isn’t an especially likely outcome. As the Herald Sun’s owner happens to be a corporation (Herald and Weekly Times), it has no rights. This seems to be the basis on which Channel Nine’s action to get Underbelly unsuppressed came a cropper. It shouldn’t have, of course, as the VCAT suppression order (like King J’s) affects the rights of Melbournians to ‘receive information’, part of their Charter freedom of expression. As well, at a stretch, the Hun can argue that those Melbournians’ right to movement might be harmed by not knowing XFJ’s identity (as some may be deterred from taking taxis.) Even more extreme, they could claim that their rights to security or life are at stake. But that’s a two-edged sword: XFJ’s rights against discrimination, privacy, security and (at a stretch) life (and maybe his family life) are protected by the order. 

Second, there’s Kosky’s promise to appeal against the VCAT judgment:

We will look at every avenue for appeal so I can actually fix that difficulty, so everyone can feel safe when they hop in a cab. That’s what I want to be able to guarantee,” she said.

Presumably, the government will argue that Macnamara misinterpreted the word ‘comfort’ in the Transport Act’s ‘public care objective’ as about upholstery rather than the personal foibles of Melbournian taxi drivers. It’s inevitable that XFJ will resist this argument using the Charter. Macnamara didn’t have to resolve that issue, but the Supreme Court will have to. Perhaps the government will respond with Charter arguments about Melbournians’ rights. But, more likely, the government will just fight XFJ’s Charter claims tooth-and-nail. Charter s. 35 notices will have to be issued, meaning that the Attorney-General and VEOHRC will be invited to the party. Both of course will be there to provide neutral assistance, so maybe the Attorney-General will back XFJ? Anyone want to bet on that one?

Third, there’s the coming legislation. Continue reading

Positive obligations under the Charter

Amidst all the excitement here in Victoria, I’ve been neglecting overseas developments. Two cases this week are interesting in the light they shed on the positive obligations in the Charter. At the Protecting Human Rights Conference, I called for the repeal of some nineteen sections of the Charter, including the definitions section. The latter call was a touch painful, because although nearly all the definitions in Charter s. 3 are bad, there is one important but neglected one:

3(1) In this Charter-… act includes a failure to act and a proposal to act

The only Charter provision that uses the word ‘act’ (in its non-statute sense) is the conduct mandate:

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

This section accordingly sometimes make it unlawful for a public authority to do nothing. I suspect, though, that even without Charter s. 3, the conduct mandate would oblige the government to act in certain situations. The extent of those obligations is quite interesting.

summumaphorismsmonument_lgIn one case being argued this week before the United States Supreme Court, the issue concerns the obligations of governments to promote free expression by weird-sounding religious groups. One such groups of oddballs, the Fraternal Order of Eagles, likes to donate massive stone monuments of the Ten Commandments for display in public parks. One of its monuments has been duly displayed in a public park in Pleasant Grove, Utah for the last thirty-eight years. The plaintiffs before the Supreme Court are another group of oddballs, Summum, who want the agency running the public park to accept their donated stone monument containing these Seven Aphorisms:

  1. SUMMUM is MIND, thought; the universe is a mental creation.
  2. As above, so below; as below, so above.
  3. Nothing rests; everything moves; everything vibrates.
  4. Everything is dual; everything has an opposing point; everything has its pair of opposites; like and unlike are the same; opposites are identical in nature, but different in degree; extremes bond; all truths are but partial truths; all paradoxes may be reconciled.
  5. Everything flows out and in; everything has its season; all things rise and fall; the pendulum swing expresses itself in everything; the measure of the swing to the right is the measure of the swing to the left; rhythm compensates.
  6. Every cause has its effect; every effect has its cause; everything happens according to Law; Chance is just a name for Law not recognized; there are many fields of causation, but nothing escapes the Law of Destiny.
  7. Gender is in everything; everything has its masculine and feminine principles; Gender manifests on all levels.

According to Summum, these are the real message Moses wanted to bring down from Mt Sinai. He was all ready to do so when he noticed the Golden Calf, raced back up the mountain and came back with a dumbed-down translation in the form of the decalogue of depressing and turgidly expressed ‘Thou Shalt Nots’ on the Eagles’ monument. Kinda like the difference between the Consultation Committee’s draft of the Charter and the version that got enacted after the meddlers did their bit. Summum’s case is that the Pleasant Grove City Council is obliged, if it is going to continue to display the Eagles’ version, to also display Summum’s, lest it commit the sin (and First Amendment infringement) of content-based regulation of public speech. The Council’s response is that the Eagles’s monument isn’t public speech, but rather government speech, which can reflect the government’s views. That’s a pretty dicey argument to make in the US, where the government is barred from establishing a religion. Not so scary here for the Victorian government. The appeal is from a 10th Circuit Court of Appeals decision in Sunnum’s favour.

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The other case, In Re E (a child) [2008] UKHL 66, decided today by the House of Lords, concerns the limits to the government’s obligation to protect people from things that they have a right against, specifically the European equivalent to this Charter right:

10 A person must not be-… (b) treated or punished in a cruel, inhuman or degrading way

The case concerned a horrific Belfast saga back in 2001, where loyalists in a North Belfast neighbourhood targetted Catholic children walking to and from school down Ardoyne Road, which passes through a Protestant estate in a predominantly Catholic area. There was no challenge to the police’s initial step of banning kids from the road altogether. Rather, the case concerned their longer term strategy:

When the new term commenced in September the police had been able to consider what strategy they would follow and what expedients they might adopt. A decision was made by them that their overriding priority was to do everything possible to enable the parents to take their children to school on foot along Ardoyne Road…. The expedient adopted was to station police and military vehicles along both sides of the road, creating a corridor through which the group of children and parents could walk. Police and soldiers were deployed on the protesters’ side and escorting police officers carrying long shields accompanied the group to protect them from missiles. This tactic proved successful, to the extent that no injuries were sustained by any children.

It was argued and accepted that this tactic, while protecting the kids’ lives, still exposed them to degrading treatment. At issue was whether the police should have done more to protect the kids, by barring the protesters from Ardoyne Road altogether. Continue reading

The sex offenders’ challenge

My guess last post was right. (Of course, presumably the whole legal community knew this, but not me.) It’s on!:

Two convicted sex offenders are invoking Victoria’s human rights charter to appeal against being given an extended supervision order in what is a legal first.

One of the applicants is a child sex offender jailed for more than 10 years for his crimes. The man, whose name is suppressed, was convicted for sex crimes against his teenage daughter, another teenage girl and his adult partner. He was given a 10-year extended supervision order when he finished his jail term after a County Court judge found a “high degree of probability” he was likely to further offend. However, his lawyer Graham Thomas SC told a Court of Appeal hearing today his client was not a high-risk child sex offender and therefore not eligible to to be subject to the order.

Mr Thomas also said the sentencing judge had indicated she did not believe the man was suitable for an order but later changed her position. But counsel representing the secretary to the Department of Justice, David Grace QC, said the man’s crimes were premeditated and opportunistic. Mr Grace said the sentencing judge included in her reasons the fact the man had shown a lack of insight into his behaviour by denying his wrongdoing. He said the man jumped bail on the day he was due to attend his court hearing on his application for an extended supervision order and had refused to take part in a sex offenders program, despite being offered many times. Mr Grace said the man continued to “thumb his nose up at authority” and suggested he tried to create relationships with females with children while he was in jail so he could groom them for sexual offending.

The second sex offender is appealing an eight-year extended supervision order imposed on him by the County Court on the basis it is too long. The man, whose name is also suppressed, was jailed for more than a year for indecent assault and will also use the charter to argue his case.

Victoria became the first Australian state to implement a Charter of Human Rights and Responsibilities on January 1 and it is the first time it will be considered by Victoria’s appeal court. The hearing before Justices Geoffrey Nettle, President Chris Maxwell and Mark Weinberg continues tomorrow.

Um, it’s actually the sixth time the Charter will be ‘considered’ by Victoria’s appeal court. The appeal court cited the Charter once in 2006 and four times again this year, including in its appalling Underbelly decision. Here’s hoping, though, that this will be the first time the Court actually does the Charter justice, in analysis if not in the final result. Interestingly, all three judges in this hearing are Charter virgins. The case, argued today, is listed for a second day of argument tomorrow. [EDIT: And here’s the Hun’s take. The tabloid refers to the offenders as ‘sex fiends’ (fair enough, I guess) and, as is the norm, gives more details of the legal argument than the Age.]

But what is being argued? The article is tantalisingly vague. I can see three types of rights arguments could be made about extended supervision orders (ESOs): Continue reading